The property puzzle

Georgetown Law Journal

Volumn 96, Issue 6, 2008, Pages 1987-2027

  Lehavi, Amnon ^a  

^a Radzyner School of Law

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EID: 51249102396     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (207)

1. Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997).
2. See, e.g., JESSE DUKEMINIER ET AL., PROPERTY 87-88 (6th ed. 2006); THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY PRINCIPLES AND POLICIES 1-9 (2007) (starting off the casebook).
3. Jacque, 563 N.W.2d at 156-57.
4. Jacque v. Steenberg Homes, Inc., 548 N.W.2d 80, 85 (Wis. Ct. App. 1996).
5. Jacque, 563 N.W.2d at 209.
6. Kelo v. City of New London, 545 U.S. 469 (2005).
7. Id. at 490; see U.S. CONST. amend. V, cl. 4 ("[N]or shall private property be taken for public use, without just compensation.").
8. For a survey of the academic criticism, see Abraham Bell & Gideon Parchomovsky, The Uselessness of Public Use, 106 COLUM. L. REV. 1412, 1423-26 (2006). For an example of a lobbying group campaign against Kelo, see DANA BERLINER, OPENING THE FLOODGATES: EMINENT DOMAIN ABUSE IN THE POST-KELO WORLD (2006), available at http://www.castlecoalition.org/pdf/publications/floodgates-report.pdf (blaming the decision for spurring eminent-domain abuse in favor of politically powerful entrepreneurs at the expense of simple-rank landowners).
9. See Patricia Salkin, Eminent Domain Legislation Post Kelo: A State of the States, 36 ENVTL. L. REP. 10864 (2006); CASTLE COAL., 50 STATE REPORT CARD: TRACKING EMINENT DOMAIN REFORM LEGISLATION SINCE KELO, available at http://www.castlecoalition. org/pdf/publications/report_card/50_State_Report.pdf.
10. See, e.g., City of Norwood v. Homey, 853 N.E.2d 1115, 1123 (Ohio 2006); Bd. of County Comm'rs of Muskogee County v. Lowery, 136 P.3d 639, 647 (Okla. 2006).
11. See Lee Anne Fennell, Taking Eminent Domain Apart, 2004 MICH. ST. L. REV. 957, 962-67 (2004); Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 MICH. L. REV. 101, 106-10 (2006). To give a fair account in the Kelo matter, Susette Kelo and a few other landowners (who were the last to holdout following the Supreme Court's judgment) settled for amounts greatly exceeding the properties' formal assessed values. See Amnon Lehavi & Amir N. Licht, Eminent Domain, Inc., 107 COLUM. L. REV. 1704, 1708-09 (2007).
12. This basic taxonomy is derived from Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1106-11 (1972). For a list of works supporting the superiority of liability rules, see Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. REV. 1719, 1721 n.5 (2004) (criticizing this broad tendency).
13. IAN AYRES, OPTIONAL LAW: THE STRUCTURE OF LEGAL ENTITLEMENTS 1-38 (2005).
14. For the information-harnessing effect of liability rules, see Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 HARV. L. REV. 713, 724-28 (1996); AYRES, supra note 13, at 103-04, 184-85.
15. Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 1-2 (1960).
16. Calabresi & Melamed, supra note 12, at 1115-24.
17. For an efficient overview of this theory, see Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 34-41 (1998).
18. See, e.g., Daniel A. Farber, Public Choice and Just Compensation, 9 CONST. COMMENT. 279, 289-90 (1992); Daryl J. Levinson, Making Governments Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 348-51 (2000).
19. This view has led authors to advocate for increasing judicial intervention in political and administrative decisionmaking. For a critical review of this literature, see Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 44-48, 66-87 (1991) (arguing that adjudication is similarly prone to problems stated by public choice theory).
20. Kelo v. City of New London, 545 U.S. 469, 472-75 (2005).
21. For a general characterization of private law as founded on the idea of corrective justice, see ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 56-83, 204-31 (1995). For a discussion of the "separation" argument, see, for example, Louis Kaplow & Steven Shavell, Why the Legal System is Less Efficient than the Income Tax in Redistributing Income, 23 J. LEGAL. STUD. 667, 667-698 (1994).
22. See J.E. PENNER, THE IDEA OF PROPERTY IN LAW 202-203 (1997).
23. The term "natural law" is obviously an intricate one that has evolved in numerous forms but that, at its core, is based on the assertion that legal principles are founded on objective moral principles that are derived from the nature of the universe and can be discovered by reason. See M.D.A. FREEMAN, LLOYD'S INTRODUCTION TO J URISPRUDENCE 90-96 (7th ed. 2002).
24. For a leading analysis of John Locke's theory of property, see JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 137-252 (1988). I deliberately use the term "Lockean" rather than simply referring to Locke because of the unique way in which "Lockean" viewpoints of counter-government, strong rights to private property have developed and intensified in legal and popular thought in the Anglo-American world, often bearing only scant resemblance to Locke's own ideas. See, e.g., Lior Zemer, The Making of a New Copyright Lockean, 29 HARV. J.L. & PUB. POL'Y 891, 892-95 (2006) (alleging scholarly misinterpretation of Locke in the copyright arena).
25. Recall Bentham's statement that "property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases." JEREMY BENTHAM, THEORY OF LEGISLATION 113 (C.K. Ogden ed., Routledge & Kegan Paul Ltd. 1931) (1802).
26. See Arthur Ripstein, Private Order and Public Justice: Kant and Rawls, 92 VA. L. REV. 1391, 1411-15 (2006).
27. Beyond classic "social contract" theories such as those of Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, several contemporary theories of the State focus on its role as an efficient third party enforcer of private agreements. See, e.g., YORAM BARZEL, A THEORY OF THE STATE: ECONOMIC RIGHTS, LEGAL RIGHTS, AND THE SCOPE OF THE STATE 13-58 (2002). For another contemporary contractual theory of property, albeit one embedded in political analysis, see GARY D. LIBECAP, CONTRACTING FOR PROPERTY RIGHTS 4 (1989).
28. Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. (PAPERS & PROC.) 347, 351-53 (1967). For later developments of Demsetz's principal insights, see, for example, Terry L. Anderson & Peter J. Hill, The Evolution of Property Rights, in PROPERTY RIGHTS: COOPERATION, CONFLICT, AND LAW 118, 118-19 (Terry L. Anderson & Fred S. McChesney eds., 2003).
29. See Benito Arruñada, Property Enforcement as Organized Consent, 19 J.L. ECON. & ORG. 401 (2003) (justifying governmental monopoly in land recording and registration activities as facilitating private contracts and protecting third parties).
30. See Katrina Miriam Wyman, From Fur to Fish: Reconsidering the Evolution of Private Property, 80 N.YU. L. REV. 117, 127-52 (2005) (analyzing the intricate ways in which political institutions operate and make decisions about the establishment or hindrance of new property regimes); see also ITAI SENED, THE POLITICAL INSTITUTION OF PRIVATE PROPERTY 1 (1997).
31. Kant further argues that all citizens are entitled to demand that others treat them in accordance with the laws of natural freedom and equality, even if some are unable or ineligible to actively participate in public decisionmaking by voting, thus being "passive" members of society. See IMMANUEL KANT, THE METAPHYSICS OF MORALS 91-92 (Mary Gergor ed. & trans., Cambridge Univ. Press 1996) (1797).
32. See Ripstein, supra note 26, at 1394, 1406-15.
33. JOHN RAWLS, POLITICAL LIBERALISM 213-14 (rev. ed. 1996). For a concise analysis of Rawlsian public reason, see Lawrence B. Solum, Public Legal Reason, 92 VA. L. REV. 1449, 1467-79 (2006).
34. POLITICAL LIBERALISM, supra note 33, at 223-27.
35. Id. at 227-30.
36. Id. at 215-16. Rawls even depicts the court as the "institutional exemplar" of public reason in a constitutional regime with judicial review. Id. at 231-40.
37. For these two principles, which would have been allegedly accepted by all society members in the "original position," see JOHN RAWLS, A THEORY OF JUSTICE 10-15 (rev. ed. 1999).
38. RAWLS, supra note 33, at 11-15. For a general discussion of this shift, see FREEMAN, supra note 23, at 523-27.
39. RAWLS, supra note 33, at 36.
40. Id. at 217.
41. Id. at 223-24. See also infra text accompanying notes 55-59.
42. Ripstein, supra note 26, at 1428.
43. For a critical discussion of the interplay between property and "civic republicanism," see STEPHEN R. MUNZER, A THEORY OF PROPERTY 138-42 (1990).
44. HANNA ARENDT, ON REVOLUTION 30-32, 114-23 (1963).
45. JÜRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE: AN INQUIRY INTO A CATEGORY OF BOURGEOIS SOCIETY (Thomas Burger trans., MTT Press 1989) (1962).
46. I thus dispute Lawrence Solum's contention that public legal reason should be "shallow," that is, void of any deep premises about moral, religious, consequentalist, or deontological ideas. See Solum, supra note 33, at 1473-78. I subscribe to the more inclusionary view of public legal reason as expressed in George Rutherglen, Private Law and Public Reason, 92 VA. L. REV. 1503, 1513-15 (2006).
47. Some admirable scholarly endeavors include J.W. HARRIS, PROPERTY AND JUSTICE (1996); MUNZER, supra note 43; PENNER, supra note 22; LAURA S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER (2003); and WALDRON, supra note 24.
48. This suggested categorical division is my own. Other commentators have advocated for different groupings in mapping out property theories. See, e.g., WALDRON, supra note 24, at 106-36 (differentiating between special- and general-rights-based arguments for private property, based on H.L.A. Hart's broad distinction between special rights and general rights in law).
49. The origins of this analysis go back to thinkers such as Adam Smith, William Blackstone, and Jeremy Bentham. See Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 360-64 (2001). For contemporary accounts, see STEVEN SHAVELL, THE FOUNDATIONS OF ECONOMIC ANALYSIS OF LAW 11-23 (2004); Demsetz, supra note 28, at 347-50.
50. WALDRON, supra note 24; see also MUNZER, supra note 43, at 255-56, 285-87.
51. See, e.g., RICHARD PIPES, PROPERTY AND FREEDOM 279-81 (1999); UNDERKUFFLER, supra note 47, at 40; James M. Buchanan, Property as a Guarantor of Liberty, in PROPERTY RIGHTS AND THE LIMITS OF DEMOCRACY 1, 59 (Charles K. Rowley ed., 1993).
52. See MILTON FRIEDMAN, CAPITALISM AND FREEDOM 7-21 (1962).
53. See MARGARET JANE RADIN, REINTERPRETING PROPERTY 36-59 (1993).
54. For a critical analysis of such "resource-specific" arguments, see generally HARRIS, supra note 47, at 13-14.
55. Ripstein, supra note 26, at 1433-35.
56. RAWLS, supra note 33, at 227.
57. Both Kant and Rawls have been criticized, however, for allowing substantial economic disparities in society, thus undermining their own contentions about freedom and equality. See MUNZER, supra note 43, at 132; see also FREEMAN, supra note 23, at 527-28.
58. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 199 (1978).
59. Ronald Dworkin, What is Equality? Part 2: Equality of Resources, 10 PHIL. & PUB. AFF. 283, 283-90 (1981) (holding a thought experiment of survivors on a desert island that uses auctions following an initial equal allocation of tokens to construct a system of mutually acceptable resource allocation).
60. See David Lametti, The (Virtue) Ethics of Private Property: A Framework and Implications, in NEW PERSPECTIVES ON PROPERTY LAW, OBLIGATIONS AND RESTITUTION 39, 39 (Alistair Hudson ed., 2004) [hereinafter NEW PERSPECTIVES]; JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 209-13 (2000).
61. See GREGORY S. ALEXANDER, THE GLOBAL DEBATE OVER CONSTITUTIONAL PROPERTY 59 (2006) (arguing that the content of property is very much determined by judicial interpretation which "openly and systemically inquires what substantive value underlies the decision to make property a constitutionally protected right," and that the theory most compatible with liberalism is "pluralist, recognizing multiple purposes inhering in the constitutional protection of property").
62. See Hanoch Dagan, Takings and Distributive Justice, 85 VA. L. REV. 741, 767-91 (1999) (laying out a "progressive takings law").
63. This literature, which calls for placing positive duties on the government to endow its citizens with a certain level of governmental benefits, is most famously associated with Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964).
64. SINGER, supra note 60, at 95-139; Daphna Lewinsohn-Zamir, In Defense of Redistribution Through Private Law, 91 MINN. L. REV. 326, 340-46, 379-90 (2006) (calling to implement redistributive goals, aimed at enabling weaker members of society to enjoy an objective threshold of well-being, in certain social scenarios such as landlord-tenant law and family property).
65. It is important to emphasize that not all these commentators agree on the same blueprint for the reconstruction of property law. For example, Lewinsohn-Zamir objects to the incorporation of explicit redistributive principles in takings law. Lewinsohn-Zamir, supra note 64, at 390-93 (arguing that compensation rules for regulatory takings are problematic because "they do not directly provide for objective goods or advance the worse-off's well-being").
66. Amnon Lehavi, Mixing Property, 38 SETON HALL L. REV. 137, 204-07 (2008).
67. Cf. Susan Rose-Ackerman, Against Ad Hocery: A Reply to Michelman, 88 COLUM. L. REV. 1697, 1700-02 (1988) (arguing against a strict case-by-case approach to judicial review of takings compensation).
68. See infra notes 75-77 and accompanying text.
69. See generally Lehavi, supra note 66 (identifying and analyzing different types of property regimes).
70. An efficient review of this debate is found in MERRIL & SMITH, supra note 2, at 15-22.
71. John Henry Merriman, Ownership and Estate, 48 TUL. L. REV. 916, 927 (1974) (explaining that under the Romanic theory of property, the "box of ownership" contains rights, "including that of use and occupancy, that to the fruits or income, and the power of alienation").
72. See BARRY NICHOLAS, AN INTRODUCTION TO ROMAN LAW 99-101 (1962); Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 COLUM. L. REV. 773, 780 (2001).
73. Merriman, supra note 71, at 927-929.
74. See WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE LAWS OF ENGLAND 2 (Univ. of Chicago Press 1979) (1765) (defining the right of property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe"). But see Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601, 603-06 (1998) (arguing that Blackstone's absolutistic concept was more wishful thinking than a depiction of the complex legal reality of his time).
75. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 718-19 (1917).
76. Some scholars have remained rather faithful to the analytical contours separating in personam from in rem rights, portraying what they deem as quintessential or typical incidents of property and ownership. See, e.g., TONY HONORÉ, Ownership, in MAKING LAW BIND: ESSAYS LEGAL AND PHILOSOPHICAL 161, 161-84 (1987).
77. See generally Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69 (J. Roland Pennock & John W. Chapman eds., 1980).
78. Merrill & Smith, supra note 72, at 787.
79. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1, 12-24 (2001).
80. Merrill & Smith, supra note 49, at 395-96.
81. See, e.g., Merrill & Smith, supra note 72, at 789-809. Other prominent scholarship that advances an essentialist approach to property, especially in regard to the general right of exclusion, includes PENNER, supra note 22, at 23-27, 68-76, and HARRIS, supra note 47, at 85-86.
82. See text accompanying supra notes 12-16.
83. See, e.g., SINGER, supra note 60, at 130-39 (locating property's center of gravity in social interdependence and arguing that rights, including property ones, should be perceived as "socially situated, contingent on their effects on others, and therefore set within the context of relationships involving mutual obligations").
84. Hanoch Dagan, Legal Realism and the Taxonomy of Private Law, in STRUCTURE IN THE PRIVATE LAW: ESSAYS IN MEMORY OF PETER BIRKS 214, 224 (Charles Ricken & Ross Grantham eds., 2007).
85. The understanding that property rights are by nature incomplete, given also the inability to define and decide in advance the fate of all resource uses, "known and unknown, new and foreseeable," is not only recognized in the legal literature, but is also increasingly gaining currency in the economic literature.
86. See, e.g., CAROL M. ROSE, PROPERTY AND PERSUASION: ESSAYS ON THE HISTORY, THEORY, AND RHETORIC OF OWNERSHIP 11-20 (1994); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 CORNELL L. REV. 531, 554-63 (2005).
87. Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849 (2007) (arguing that the American property system is largely based on a moral convention of exclusion).
88. See Merrill & Smith, supra note 49, at 395-96.
89. For a discussion of such tension, see Timothy J. Brennan, Copyright, Property, and the Right to Deny, 68 CHI.-KENT L. REV. 675 (1993). For an interesting recent exchange about similarities and differences in the protection of property in land vis-à-vis intellectual property, compare Peter S. Menell, Intellectual Property and the Property Rights Movement, REGULATION, Fall 2007, at 36, with Richard A. Epstein, A Response to Peter Menell: The Property Rights Movement and Intellectual Property, REGULATION, Winter 2008, at 58.
90. See, e.g., WALDRON, supra note 24, at 295.
91. PENNER, supra note 22, at 71; see also Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 YALE L.J. 1742, 1752 (2007).
92. Larissa M. Katz, Exclusion and Exclusivity in Property 16-23 (Legal Studies Research Paper Series No. 08-02, 2008), available at http://ssm.com/abstract=1126674.
93. HONORÉ, supra note 76, at 168-79.
94. See generally Lehavi, supra note 66.
95. See Merrill & Smith, supra note 79, at 24-58 (arguing that the numerus clausus principle achieves optimal standardization that minimizes the sum of societal costs). Merrill and Smith's argument also has an institutional component, according to which new forms of property rights should be designed by the legislature and not by courts. Id. at 58-68. While I accept some of Merrill and Smith's general institutional arguments, I believe that their focus on generic kinds of property interests is too narrow and misses much of the real-life and theoretical complexity of property, in a manner that also distorts their otherwise insightful analysis.
96. For an analysis of neighborhood composition as a property issue, see Lee Anne Fennell, Properties of Concentration, 73 U. CHI. L. REV. 1227 (2006).
97. For a foundational analysis of the various forms of land-use controls and controllers, see Robert C. Ellickson, Alternatives to Toning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 (1973).
98. See discussion infra section II.B.1.
99. See infra Part III.
100. See generally BARZEL, supra note 27.
101. Lehavi & Licht, supra note 11, at 1710-11.
102. See infra section III.C.
103. For a survey of such prohibitions, see DUKEMINIER ET AL., supra note 2, at 376-84.
104. Robert C. Ellickson, Unpacking the Household: Informal Property Rights Around the Hearth, 116 YALE L.J. 226, 271-76 (2006).
105. See generally Amnon Lehavi, How Property Can Create, Maintain, or Destroy Community (Theorectical Inquiries in Law, 2009), available at http://ssrn.com/abstract=1087026.
106. Id. at 19-23.
107. One difficult problem in the context of my work concerns the proper institutional craning of intrafamily property law. See Carolyn J. Frantz & Hanoch Dagan, Properties of Marriage, 104 COLUM. L. REV. 75 (2004) (advocating for a property system based on a normative conception of marriage as an "egalitarian liberal community"); Lewinsohn-Zamir, supra note 64, at 385-89 (calling to incorporate egalitarian distributive concepts in this property system). I shall refrain from developing a full-scale argument about this setting and will only remark that the thrust of the dilemma lies in the fact that although a family is allegedly a quintessential close-knit community based on consent and fraternity, it is adversely affected by hierarchal social and cultural traditions that are increasingly conceived as requiring publicly reasoned, publicly made corrective measures.
108. The 286,000 CICs in the United States house about 57 million residents to date. See Community Associations Institution, Industry Data, http://www.caionline.org/about/facts.cfm (last visited Feb. 28, 2008).
109. I expounded upon the basic structure of CICs in Lehavi, supra note 66, at 160-62.
110. In a recent survey, 74% of CIC residents said that their CICs rules "protect and enhance" property values. Only 3% said these rules "harm" property values. Zogby International, Homeowners and Community Associations, 2005 National Research Findings, http://www.caionline.org/about/ survey.cfm (last visited Aug. 1, 2007).
111. In some states, the creation of CICs is governed by specific legislation on the matter. See RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 6.3 (2000). Probably most familiar is California's Davis-Stirling Common Interest Development Act, codified at CAL. CIV. CODE § 350-78 (Deering 2005).
112. Villa De Las Palmas Homeowners Ass'n v. Terifaj, 90 P.3d 1223 (Cal. 2004).
113. Id. at 1235.
114. Id. at 1228.
115. Id. at 1229.
116. For a more detailed analysis, see Lehavi, supra note 66, at 160-66.
117. For differing views on the nature and scope of internal group power over members, compare Clayton P. Gillette, Courts, Covenants, and Communities, 61 U. CHI. L. REV. 1375, 1413-19 (1994) (generally advocating an approach to CIC powers based on a "relational contract" concept), with Gregory S. Alexander, Dilemmas of Group Autonomy: Residential Associations and Community, 75 CORNELL L. REV. 1, 55-58 (1989) (calling for the application of a more stringent standard of "reasonableness" for certain post-establishment nonconsensual decisions to avoid minority abuse).
118. See generally Sheryll D. Cashin, Privatized Communities and the "Secession of the Successful": Democracy and Fairness Beyond the Gate, 28 FORDHAM URB. L.J. 1675 (2001).
119. See generally Paula A. Franzese, Privatization and Its Discontents: Common Interest Communities and the Rise of the Government for "The Nice, " 37 URB. LAW. 335 (2005).
120. Overt mechanisms may include gates and fences physically isolating the community. Formal sorting of community members is achieved by associational provisions setting up, for example, age restrictions or bans on convicted sex offenders. This is in addition to informal sorting mechanisms such as premeditated choice of the type of common amenities offered by the CIC. For references on these issues, see Lehavi, supra note 66, at 161 n.100.
121. See, e.g., David J. Kennedy, Note, Residential Associations as State Actors: Regulating the Impact of Gated Communities on Nonmembers, 105 YALE L.J. 761, 763, 778-79 (1995) (arguing that residential associations should be regarded as state actors and that their powers should not exceed those of government entities).
122. Whereas such disputes are usually resolved in private-law jurisprudence through the law of nuisance, nuisance law's traditional location in tort does not undermine its proprietary nature. See Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965, 990-96 (2004).
123. See Bamford v. Turnley, (1862) 122 Eng. Rep. 27, 32-33.
124. See ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 114 (3d ed. 2004); Ellickson, supra note 97, at 731-33. As the United States Supreme Court famously stated in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926), "A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard."
125. See CLERK & LINDSELL ON TORTS § 19-15 (Anthony M. Dugdale et al. eds., 18th ed. 2000) and RESTATEMENT (SECOND) OF TORTS § 822 (2007) for the English and American law, respectively, on that point.
126. See Smith, supra note 122, at 993-94.
127. Ellickson, supra note 97, at 720-21.
128. See RESTATEMENT (SECOND) OF TORTS § 941 (2007); see also John Copeland Nagle, Moral Nuisances, 50 EMORY L.J. 265, 274-75 (2001). The property rules versus liability rules taxonomy is based, of course, on the work of Calabresi & Melamed, supra note 12.
129. Henry Smith argues that although the switch to such a "governance" regime is understandable from a case-specific efficiency viewpoint, too broad a reliance on such types of judicial resolutions may significantly increase the overall information costs, and this in turn justifies resolving such disputes through private parties or other institutions such as the legislature. Smith, supra note 122, at 1037-45. Whereas I definitely agree that for some types of disputes, other state institutions may be preferable to the judiciary, I think that Smith somewhat overstates the case against case-specificity. Obviously, environmental regulation is intended to resolve many potential land-use conflicts in advance, but arguing that every instance that is not covered by regulation requires site-specific legislation or administrative action may also prove prohibitively costly.
130. See generally DUKEMINIER ET AL., supra note 2, at 361-449.
131. See Merrill & Smith, supra note 87, at 1893-94.
132. See infra section III.E. See generally Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient?, 8 HOFSTRA L. REV. 711 (1980); David Pearce, Property and Contract: Where Are We?, in NEW PERSPECTIVES, supra note 60, at 87; Merrill & Smith, Interface, supra note 72.
133. YORAM BARZEL, ECONOMIC ANALYSIS OF PROPERTY RIGHTS 90-96 (2d ed. 1997).
134. See Lewinsohn-Zamir, supra note 64, at 381-83.
135. Id. at 383-85.
136. DUKEMINIER ET AL., supra note 2, at 431-39.
137. See MUNZER, supra note 43, at 98-110; BARBARA H. FRIED, THE PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LAW AND ECONOMICS MOVEMENT 71-107 (1998).
138. See generally Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927).
139. An interesting discussion of such theories is found in FRIED, supra note 137, at 108-59.
140. For a critical analysis of various measures used by governments to attain the goal of "providing an equitable distribution of resources" in areas such as food stamps, low income housing, health care, education, and labor market training, see RONALD J. DANIELS & MICHAEL J. TREBILCOCK, RETHINKING THE WELFARE STATE: THE PROSPECTS FOR GOVERNMENT BY VOUCHER (2005).
141. For a critical discussion of direct public provision, see id. See also Lehavi, supra note 66, at 143-150, 177-78 (surveying the current debate over privatization of traditional public services and arguing in favor of direct public provision in the context of public spaces).
142. This is probably most famously advocated in Reich, supra note 63. For a recent analysis of the British welfare state, see generally TONY BUTCHER, DELIVERING WELFARE (2d ed. 2002).
143. For an overview of this debate, see Lewinsohn-Zamir, supra note 64, at 327-28, 333-39.
144. Kelo v. City of New London, 545 U.S. 469, 503 (2005) (O'Connor, J., dissenting).
145. See Merrill & Smith, supra note 87, at 1853-57.
146. Id. at 1858-60, 1871-74 (describing the possessory rights afforded landowners under the first-in-time rule and the law of trespass). At the same time, private rights in land should be far from absolute. This should be so, for example, such that private rights would be subjected to principles such as "de minimis" or "abuse of rights." For the prevalence of the "abuse of rights" concept in legal systems, see generally Joseph M. Perillo, Abuse of Rights: A Pervasive Legal Concept, 27 PAC. L.J. 37 (1995). Accordingly, I believe that the punitive damages award in the Jacque case was grossly exaggerated, even if it had set out to establish a property-rule protection and to deter future trespasses.
147. See MERRILL & SMITH, supra note 2, at 9-15 (describing how courts declined to allow trespass suits against owners of airplanes).
148. For the American historical context, see generally William Michael Treanor, Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985).
149. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
150. N.Y. EXEC. LAW § 828 (McKinney Supp. 1981-1982). Prior to 1973, Teleprompter obtained installation permits from property owners along the cable route in return for a standard rate of 5% of the gross revenues that it realized from the particular property. Loretto, 458 U.S. at 422-24.
151. Loretto, 458 U.S. at 423-24.
152. Id. at 425-26.
153. Id. at 435-36.
154. See id.
155. On remand, the New York Court of Appeals upheld the State Commission's determination regarding the $1 compensation, relying on the following reasons, among others: the small amount receivable by any single property owner, the relatively insignificant damage to an owner's property by attachment of cable faculties, and that Teleprompter had offered to post a bond in light of the Supreme Court's ruling. Loretto v. Teleprompter Manhattan CATV Corp., 446 N.E.2d 428,434-35 (N.Y. 1983).
156. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).
157. Land Reform Act of 1967, codified at HAW. REV. STAT. ANN. ch. 516 (LexisNexis 2007).
158. Midkiff, 467 U.S. at 232.
159. Id.
160. Id. at 233.
161. See Kelo v. City of New London, 545 U.S. 469, 473 (2005).
162. I borrow Meir Dan-Cohen's term, depicting the potential divergence between "conduct rules" (that is, conduct guidelines addressed to the general public) and "decision rules" (that is, decision guidelines addressed to judges in solving disputes) - the selection of which depends on the specific policy that rulemakers deem desirable in a given context. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625, 627, 629 (1984).
163. Merrill & Smith, supra note 87, at 1879-84.
164. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 1, March 20, 1952, 213 U.N.T.S. 262 [hereinafter European Convention].
165. J.A. Pye (Oxford) Ltd. v. United Kingdom (J.A. Pye I), App. No. 44302/02 (Eur. Ct. H.R. Nov. 15, 2005), available at http://cmiskp.echr. coe.int/tkp197/view.asp?item=2&portal=hbkm&action= html&highlight=J. A.%20%7C%20Pye%20%7C%20United%20%7C%20Kingdom&sessionid=5803891 &skin=hudoc-en.
166. See generally MARK P. THOMPSON, MODERN LAND LAW 201-39 (3d ed. 2006). For a survey of American adverse possession law, see MERRILL & SMITH, supra note 2, at 194-220.
167. See THOMPSON, supra note 166, at 226-30.
168. See J.A. Pye I, App. No. 44302/02, paras. 63-65.
169. THOMPSON, supra note 166, at 94-95.
170. See id. at 230.
171. Id. at 230-36.
172. J.A. Pye (Oxford) Ltd. v. United Kingdom (JA. Pye II), App. No. 44302/02 (Eur. Ct. H.R. Aug. 30, 2007) (Grand Chamber), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1& portal=hbkm&action= html&highlight=J.A.%20%7C%20Pye%20%7C%20United%20%7C%20 Kingdon& sessionid=6054179&skin=hudoc-en.
173. Id. paras. 9-12, 22-33.
174. Id. para. 3.
175. European Convention, supra note 164.
176. Id.
177. J.A. Pye I, App. No. 44302/02, paras. 49-76.
178. J.A. Pye II, App. No. 44302/02, para. 75.
179. Id.
180. Id. para. 72.
181. Id. para. 74.
182. See THOMPSON, supra note 166, at 231.
183. Cf. Daniel H. Cole, Taking Coast Seriously: Neil Komesar on Law's Limits, 29 LAW & SOC. INQUIRY 261, 282 (2004) (book review) (arguing that, in practice, high numbers and complexity make decisions about the property system more suitable for political institutions than for legal ones).
184. Kelo v. City of New London, 545 U.S. 469, 472 (2005).
185. Up to the summer of 2006, most of the $73 million expended over the Fort Trumbull project's course, including monies expended on taking the properties of Susette Kelo and her neighbors, came from the State of Connecticut's Department of Economic and Community Development. Ted Mann, Fort Trumbull Saga Ends on Costly Note, THE DAY (New London, Conn.), Aug. 23, 2006, at A1.
186. See Alon Harel, Right-Based Judicial Review: A Democratic Justification, 22 LAW & PHIL. 247, 248-49 (2003).
187. Id. at 248-49.
188. See supra notes 56-59 and accompanying text.
189. For an analysis of this second group of arguments, see Harel, supra note 186, at 250-59.
190. U.S. CONST. amend. V, cl. 4.
191. See U.S. CONST. amend. V, cl. 4; id. amend. XIV, § 1, cl. 3. For an analysis of the procedural and substantive due-process rights to property, see, respectively, RONALD A. CASS ET AL., ADMINISTRATIVE LAW: CASES AND MATERIALS 598-615 (4th ed. 2002) and ROBERT C. ELLICKSON & VICKI L. BEEN, LAND USE CONTROLS: CASES AND MATERIALS 94-112 (3d ed. 2005).
192. ELLICKSON & BEEN, supra note 191, at 836.
193. This latter type of acts or omissions is typically referred to as "inverse condemnations" or "regulatory takings." See generally DUKEMINIER ET AL., supra note 2, at 941-1065.
194. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982).
195. Id. at 436 n.12 (citing Pruneyard Shopping Center v. Robbins, 447 U.S. 74 (1980)).
196. Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 82-86 (1980). It should be noted that the shopping mall raised the property issue as a takings argument in view of the California Supreme Court's interpretation of the state constitution as entitling citizens to exercise free expression and petition rights on shopping center property. The case was not, however, about a conventional governmental taking of property, but rather about a state-mandated reallocation of entitlements and obligations in shopping malls among private parties.
197. Wilkie v. Robbins, 127 S. Ct. 2588, 2602 (2007) (discussing differences and similarities between the government and private citizens as landowners).
198. See Kelo v. City of New London, 545 U.S. 469, 480 (2003).
199. See id.
200. In this sense, the post-Kelo state reaction has resulted in "property federalism," that is, a distinctive design of the property regime in land based on each state's unique perceptions. See Abraham Bell & Gideon Parchomovsky, Of Property and Federalism, 115 YALE L.J. 72, 76-78 (2005). See generally Christopher Serkin, Local Property Law: Adjusting the Scale of Property Protection, 107 COLUM. L. REV. 883 (2007) (calling to allow local governments to select the property protection they want to offer, so that consumers select the kind of property protection they want by choosing where to live and invest).
201. Cf. Merrill & Smith, supra note 72, at 809-49 (reviewing several legal institutions that exist along the property/contract interface, including bailments, landlord-tenant law, security interests, and trusts).
202. For an analysis of the debate over the integrity of such a distinction, see N.E. Simmonds, Justice, Causation and Private Law, in PUBLIC AND PRIVATE: LEGAL, POLITICAL AND PHILOSOPHICAL PERSPECTIVES 149 (Maurizio Passerin d'Entrèves & Ursula Vogel eds., 2000). Obviously, this quandary is also central to many other fields in the humanities and the social sciences. See Jeff Weintraub, The Theory and Politics of the Public/Private Distinction, in PUBLIC AND PRIVATE IN THOUGHT AND PRACTICE 1, 2-4 (Jeff Weintraub & Krishan Kumar eds., 1997); Alan Wolfe, Public and Private in Theory and Practice: Some Implications of an Uncertain Boundary, in PUBLIC AND PRIVATE IN THOUGHT AND PRACTICE, supra, 182, 196-201.
203. For the debate on the autonomy of private law with respect to the type of rules and values on which it should be based in resolving specific disputes, see generally Hanoch Dagan, The Limited Autonomy of Private Law, 56 AM. J. COMP. L. (forthcoming 2008).
204. Lehavi, supra note 66, at 209-11.
205. Merrill & Smith, supra note 87, at 1850 (viewing the right to exclude as the basic moral tenet of property, and applying it throughout the spectrum of private and public jurisprudence).
206. See, e.g., Scott Hershovitz, Two Models of Tort (and Takings), 92 VA. L. REV. 1146, 1149 (2006) (offering a consolidated theory for torts - especially "proprietary" nuisances - and takings).
207. See JEAN-JACQUES ROUSSEAU, ON THE SOCIAL CONTRACT, bk. IV, ch. 1 (G.D.H. Cole trans., Dover Publishing 2003) (1762).